with the moral imagination of man, may not be able to stand the test of reason equally; and whether a religion coextensive with our total nature may not come from the Creator of nature and of man. It will ask, also, whether in a religion truly divine, the senses would not find many things with which to quarrel; human pride, many things at which to scoff; human littleness many things, to misconceive; and whether the Church of Christ is not likely to be one which the world can never dethrone, and yet which, as when it plotted in the Catacombs, never seeks to escape the scandal of the Cross. ART. III.-The Charitable Trusts Bill.-1853. CHAI HARITABLE trusts, in the largest sense of the term, are as old as Christian Charity, and their origin is coeval with that of Christianity. In the history of the infant Church, we read, that those who had lands or houses, sold them, and offered the price, and entrusted it to the Apostles, for administration among the faithful, who had all things in common.* And then we read further, that some murmuring about their being neglected in the distribution of alms, seven men," full of the Holy Spirit, and of wisdom, were chosen specially for this work, and ordained to it by the Apostles."t These "Deacons," the highest authority asserts, were "the coadjutors of the Apostles, and official assistants of the Bishops;" and, according to the expression of the apostolical constitutions, "the Deacon was the ear and eye, the mouth and hand, of the Bishop, the executor of his will, as the Priests were members of his council." The especial office of the Deacons, we are informed on the same authority, was "to collect the offerings of the faithful." But they had holier duties than the mere adminis *Acts of the Apostles, iv, 34. † Ibid, c. vi, v. 1—6. Dollinger's Church History, Period, I. c. 3, sec. 2, p. 236. tration of alms; and it is added that they were the "elders," (seniores Ecclesia,) of whom mention is made by the fathers. These were "virtuous laics, who assisted the Clergy in the administration of the ecclesiastical revenues. It is abundantly obvious, from these facts and authorities, that the earliest administration of charitable funds was conducted under Episcopal auspices. This is expressly laid down, indeed, in the Apostolical constitutions, in which occurs the following passage: "It is for you, laymen, to contribute liberally; it is for the Bishop, as the administrator of ecclesiastical matters, to dispense. Beware lest you wish to call the Bishop to account, for he has God to call him to account.' The Bishop, of course, was bound to administer the property of the Church according to the law of the Church; and was subject to his Metropolitan and the Holy See. Where, as was usually the case before the Church was established, the property he was entrusted with was placed absolutely at his disposal, of course the disposition of it would be in his discretion. In the sixth century a Council declared that the pastors of the Church possessed the goods of the Church, not for themselves, but for others, for the honour of God, and the advantage of the faithful;" but it is clear that this purely spiritual obligation could only be a matter of conscience, or of spiritual censure. When the gifts of property were expressed to be for specific purposes, of course they would constitute trusts; but still, if the purposes were spiritual, the trusts would be spiritual, and of spiritual cognizance. How they could be administered under such authority is plain from the principle laid down by Pope Gregory, who speaks of the "will of the founder” in a way clearly showing his sense of the obligation of adhering to it; an obligation always recognized by the canon and common law of England, so long as the former existed to regulate, and the latter continued to recognize, Catholic spiritual or charitable trusts. 66 It is evident, that the distribution of the ecclesiastical revenues must have been at the absolute discretion of the * Ibid, p. 235. †Thomassinus de Nov. et Vet. Discip. Eccles. T. ii, lib. 5. 66 Bishops, assisted by the counsels of the Elders, or Deacons. The essence of the trust was episcopal authority, the funds being vested absolutely in the Bishops, and their duty in respect thereto essentially ecclesiastical, and of spiritual cognizance. The donors lost all legal power over the funds, and could not control the application. Thus the Apostle said to the fraudulent donor who had concealed the amount of the proceeds: While it was in thine hands, was it not thine own?" implying that when it was dedicated to charitable purposes, it ceased to be so. And had the question been submitted to the Roman Civil Law, the same conclusion would have been reached; for although that law gave cognizance to the courts in matters of trust, it was only where the trust was for the benefit of a private party. And we need hardly say that charitable trusts were unknown to Pagan Rome, and were the firstfruits of the Christian faith, the earliest offerings of the Catholic Church. In our own country it is matter of history that similar principles were established, from the very foundation of the Catholic Church. When Augustine, Bishop of the Church of Canterbury, wrote to Pope Gregory concerning Bishops, how are they to behave towards their Clergy? or into how many portions the things given by the faithful to the altar are to be divided? and how is the Bishop to act in the Church? the Pope writes in answer thus: "It is the custom of the Apostolic See to prescribe rules to Bishops newly ordained, that all emoluments which accrue are to be divided into four portions; one for the Bishop and his household, because of hospitality and entertainments; another for the Clergy; a third for the poor; and a fourth for the repair of churches. But, as for those that live in common, why need we say anything of making 'portions, or keeping hospitality, and exhibiting mercy;' inasmuch as all that can be spared is to be spent in pious and religious works." It is obvious that the Pope considered the question one purely spiritual; and indeed it could scarcely be otherwise, since it was only by religious obligation that bishops or abbots were bound to distri * See Dr. Bowyer's learned and luminous Commentaries on the Civil Law, c. 25. † Bede's Ecclesiastical History, B. i, c. 27. bute the goods they received to the poor, any more than other persons; and although they were thus bound to distribute the goods of the Church in alms, the very nature of alms implies the absence of any legal claim. So, though these were trusts, they were only spiritual. The nature of a trust depends upon the obligation which creates and enforces it, whether it be a temporal or spiritual obligation. The temporal or legal obligation cannot exist where the parties to benefit by the trust are not only indefinite and undetermined, and dependent on the discretion of the almoner, but have no kind of claim by the terms of the donation. The same principles are embodied in the Anglo-Saxon laws, which express the pristine policy of the Christian realm of England, when, in the beautiful language of Mr. Manning, the Divine kingdom of the Church had descended on our Saxon soil, and embraced in its bosom all the secular sovereignties until blended into one under the spiritual supremacy of the Holy See. Even before this consummation of a temporal unity under one Crown, England enjoyed ecclesiastical unity under one Archbishop; and hence, in the laws of the separate Saxon states the same principles are embodied as in the laws of the united realm. The same spirit pervades the laws of Ethelred, of Alfred, of Edgar, and of Edward. Thus, "in the ordinance that king Ethelred and the ecclesiastical and lay witan" have chosen and advised,* we read thus: "that men of every order readily submit to the law which is appropriate to them; and let canons, where their benefices keep them, minister rightly, and with purity, as their rule may bind; or it is right that he forfeit his benefice who will not do so. It is clear, that though the enforcement of the rules might be aided by the secular power, the administration of them was purely spiritual; for almost the next clause is, "let no man reduce a Church to servitude, nor unlawfully make Church-mongering, nor turn out a Church minister without the Bishop's consent." So it is afterwards enacted thus:f "If for a God bot, (i. e., a spiritual offence,) a pecuniary penalty arise, as secular laws may have established, that belongs lawfully, by the direction of the bishops, to the * Laws of king Ethelred. Ancient Laws of England, vol. i, p. 304. + Ibid, p. 329. behoof of the poor, and to the reparation of churches, and to the instruction of those who minister to God, and for books, and bells, and church garments, and none for worldly idle pomp, but as a secular donation for Divine purposes. Thus even where the secular power imposed pecuniary penalties for spiritual offences, the distribution of them was left to the episcopate. So in the laws of Edgar we find him speaking of such funds thus: "I will that those God's dues stand everywhere alike, and that the priests who received the monies we give to God, do that which the pastors of our souls teach, that is, the bishops, whom we ought never to disobey in any of those things which they teach us on the part of God." Both Edgar and Alfred direct the payment of tithes to the parish priests, as Ethelred, and other Saxon kings, had done before them; and it is plain that the supervision of the disposition and application of these, and all ecclesiastical revenues, was confided exclusively to the Bishops and Abbots. When Edgar endeavoured to reform the abuses which existed, he addressed himself thus to them: "It is for me to see that the ministers of churches, the confraternities of monks, and communities of virgins, have what is necessary; it is for you to see that they live according to their rule. I grasp the sword of Constantine, you hold the sword of Peter. My ancestor bestowed a tithe of his lands upon the churches and monasteries; my progenitor, Alfred, enriched the Church, and was unsparing in his donations from his treasures, his patrimony, his goods, and his lands. It is not unknown to you how much the Church was enriched by my grandfather, Edward, with gifts from his paternal estate. It is fitting also that you recollect what will-offerings have been made on the altars of Christ by my father and brother. To you, then, I confide this affair, in order that, by your episcopal censure, and the royal authority, (i. e., enforcing those censures,) you may remove evil doers from our churches, and supply their places with those who live in accordance with the ordinances of religion."§ It is scarcely necessary to * Laws of king Edgar. Ancient Laws of England, vol. i, p. 273. † Mac Cabe's Catholic History, vol. ii, p. 562. + Ibid, p. 564. VOL. XXXIV.-No. LXVIII. § Ibid, p. 567. 7 |